The Alabama Supreme Court late Tuesday ordered probate judges across the state to defy a federal court order and stop issuing marriage licenses to same-sex couples.
The order was the latest in the emerging constitutional crisis in Alabama over marriage equality. Alabama became the 37th state to recognize marriage equality in January, when a federal district court ruled the state’s ban on same-sex marriages unconstitutional.
Attorneys for the state appealed that ruling to the 11th Circuit Court of Appeals, which refused to overturn the district court decision. The state then filed an emergency appeal with the U.S. Supreme Court, asking it to stay the lower court order. In February, over the objections of conservative justices Antonin Scalia and Clarence Thomas, the Roberts Court refused to intervene.
Probate judges across the state were to begin issuing licenses to same-sex couples as of February 9. But while the Roberts Court was considering the state’s request to intervene, Alabama Supreme Court Chief Justice Roy Moore issued an administrative order to probate judges in the state. He warned that any judge who issued marriage licenses to same-sex couples would be in violation of Alabama law and face “action” by Alabama Gov. Robert Bentley.
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Moore’s order did not clarify what kind of action those judges would face.
After the Supreme Court refused to intervene, and with probate judges across the state facing threats of political repercussions for following federal law, a majority of Alabama counties refused to issue marriage licenses to same-sex couples. That refusal prompted more legal action by marriage equality advocates, including a request to hold in contempt probate judges who refused to issue marriage licenses to same-sex couples.
The Alabama Policy Institute and the Alabama Citizens Action Program, a pair of conservative advocacy groups, filed an emergency request with the Alabama Supreme Court to stop same-sex marriages in the state.
Tuesday’s order temporarily grants that request.
In addition to ordering probate judges across the state to stop issuing marriage licenses to same-sex couples, the order directs probate judges who wish to file a response as to why they should not be bound by the Alabama Supreme Court’s order, to do so in the next five business days.
Only one justice on the Alabama Supreme Court dissented.
The court states in the opinion that probate judges have a duty to follow Alabama law and purports to explain how the federal district court opinion striking down Alabama’s same-sex marriage ban is wrong.
“As it has done for approximately two centuries, Alabama law allows for ‘marriage’ between only one man and one woman,” the court said. Alabama judges, the court wrote, have a duty “not to issue any marriage license contrary to this law. Nothing in the United States Constitution alters or overrides this duty.”
The state’s ban on marriage equality isn’t discriminatory because it prohibits both men and women from marrying people of the same sex, according to the Alabama Supreme Court. The court reasoned that the state’s same-sex marriage ban is meant to recognize and encourage ties “between children and their biological parents.”
Accordingly, the court ruled, “traditional marriage” can be considered a fundamental right, but same-sex marriage cannot.
The ruling does not appear to invalidate those marriage licenses granted in the state, but the opinion uses the language “purported” to describe the legitimacy of marriage licenses issued to same-sex couples.
Alabama probate judges now face the difficult choice of disobeying a state supreme court order or a likely federal lawsuit, should they refuse to issue marriage licenses to same-sex couples. Meanwhile, the Roberts Court will hear arguments in April on whether or not statewide bans on same-sex marriage like Alabama’s are constitutional. A ruling in that case will likely not happen until June.